by Reggie Gay
Q: We have a job applicant who worked for us approximately six years ago. There’s nothing negative in her file, but there were some issues with her job performance. Neither of her former supervisors wants to hire her back. She has applied several times and has received rejection letters, but she keeps reapplying. How do you handle a former employee who continues to reapply for a job despite repeatedly receiving rejection letters?
A: The quick answer is that you probably can’t — or perhaps shouldn’t — stop someone from applying for a job, but that doesn’t mean you have to hire her. As to how to handle your former employee, there aren’t a lot of good options. The best course of action is to continue to follow your job-posting procedures and treat her the same way you treat other applicants.
As with any hiring decision, the general guideline is that you should hire the most qualified individual who will be the best fit for the job and the company. That analysis involves both objective and subjective factors and enables you to have some discretion in the hiring process. Remember, however, that you can be found liable for discrimination against people in certain protected classifications, including applicants and employees protected by the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act of 1964. Those laws prohibit you from discriminating against an applicant (1) because she is 40 or older, (2) when she is a qualified individual with a disability who can perform the essential functions of the job with or without reasonable accommodation, or (3) because of her race, national origin, religion, sex, or any other legally protected status.
A rejected applicant can assert a claim of discrimination based on one of those protected classifications, and the employer will be required to explain its hiring decision. You may easily accomplish that by pointing to the education or experience listed on the applicants’ resumes or required by your job application, specialized training requirements, or other objective criteria that would make one applicant more qualified than another. Subjective criteria, such as personality traits, are more difficult to defend and can potentially cause problems.
Mastering HR: Discipline and Documentation
In this particular situation, it appears that the main reason for not hiring the applicant is her earlier unsatisfactory work performance. Unfortunately, it seems that her former supervisors didn’t appropriately evaluate her performance or document her file. I’m also assuming that there’s no documentation indicating she isn’t eligible for rehire. Thus, you have no objective written documentation to support the decision not to rehire her. That could pose a problem if she chooses to challenge the hiring decision.
The former supervisors’ failure to document the employee’s poor performance may also be one reason she continues to apply for a job. If she was never disciplined for or counseled about her poor job performance, she may believe she was a good employee and may be surprised by her supervisors’ opinions. If that’s the case, telling her that she won’t be rehired because of her past poor performance may cause her to believe there are other factors involved, such as discrimination. As a result, you should proceed cautiously in any discussions with the former employee.
You may want to take this opportunity to educate the employee’s former supervisors and others on the importance of documenting poor job performance. Supervisors need to understand that documentation can make or break a case. If an employee’s job performance is unsatisfactory, the supervisor should record that fact in her file. Depending on the severity of the performance issues, the supervisor should consider disciplinary warnings and a corrective action plan.
If a supervisor fails to document an employee’s poor performance or if the behavior isn’t bad enough to document, then the company may have problems asserting any previous performance issues as a defense to discrimination claims. Supervisors need to clearly understand that their failure to document problems can result in liability for the company.
Basic Training for Supervisors, including documentation, evaluations, and hiring
The underlying lesson from this question is that if someone meets the minimum criteria or requirements for a posted job, she is free to apply for it. The employer must appropriately screen applicants to determine which candidate is the most qualified and the best fit for the company. When doing that, you can use both objective and subjective criteria, but you should be able to articulate and establish a legitimate nondiscriminatory reason for choosing one applicant over another. Lastly, failing to properly document poor performance can be costly and create problems down the road.
Absolutely. Supervisors need to understand the importance of documentation during, and not after, the fact. I’ve seen far too many situations where an employee serving in a 2 year traineeship was repeated rated satisfactory, but when the time came for the traineeship to end and lead to a permanent position, suddenly the employee’s poor performance or time and attendance came to light resulting in a recommendation from those supervisors of termination.
Similar occurs when an employee is seeking a promotion. While they were doing their original job there were no performance or other issues, but come promotion time, suddenly this employee isn’t doing right. In those instances the denial of a promotion has been questioned and in some instances the promotion ultimately had to be given because the only reason for denial was the desire to hold the employee back because no one else could handle their current job.
Sometimes, unfortunately, I think that the people who will file complaints based on protected class status do so to cover up their own incompetence and poor performance; those employees do not prevail once an investigation has been launched. I’ve seen several cases like this. The undue stress they cause during the investigative process is outrageous.
…”There’s nothing negative in her file, but there were some issues with her job performance. Neither of her former supervisors wants to hire her back”…
For me this is a little too vague to assume that there were defensible issues left undocumented that would make the case clear for No Rehire. Often enough there are employees who move on for personal reasons that did a reasonable job but you believe there is perhaps a better candidate. Maybe there was lackluster chemistry with the team, perhaps you found some things after they left that indicated their exit was an opportunity for a welcome change…but who knew?
I totally agree that there are too many undocumented events and this could well be the reason for these awkward situations much of the time. I just wanted to mention that there are those occasions where it is more subtle and/or complex. An open position is always an opportunity and sometimes when you have “been there and done that” you prefer to “go forward and not back.”
Even if a personnel file is marked “No rehire” due to disciplinary issues or due to a discharge during that person’s previous employment can an employer continue to refer to that as a reason for failing to rehire a prior employee that continues to apply over and over again? And if so, for how long?
I think most of us have been in the position where a marginal employee voluntarily departs. That does not mean if given the vhance, you want that employee back. I would think the departed employee would have a difficult time making the case for discrimination as they were once hired and left on their own. Even if their previous reviews were less than accurate, there needs to be something more than just not getting an interview to support a viable claim.
I actually see more potential harm in bringing them in for an interview if you have no intention of hiring them. The chances that something in the interview process may be misinterpreted are far greater than if they never hear from you at all.
One caveat; if the former employee is being considered for a different job or something substantial has changed in the intervening 6 years (such as getting a degree), it may be worth a second look. You could do worse than hiring someone who clearly wants to work for your company.
Supervisors need to learn that there are consequences for their failure to supervise properly (including by properly evaluating, disciplining and documenting the discipline/evaluative corrections of the employees performance and behavior):those consequences of negligent supervision include that they may get “stuck” with the employee upon re-application.
If the employer does entertain the idea of rehire, the supervisors should list the objective reasons, along with factual documentation. The HR director could then review these points with the re-applicant to determine whether the applicant was aware of the problems, and how the re-applicant plans to correct his performance and behavior if rehired. At the very least, this process shows that the rehiring decision focus was on performance and behavior issues rather than upon any illegal considerations.
Most large corporations allow former employees who separate for reasons other than gross misconduct(proven theft, harassment, fighting, etc.) to be considered for employment after a two year period, when the statute of limitations wears off for employee claims.
As we all know, when there is a dispute or poor performance, there are several sides to a story. Was the supervisor incompetent or the employee? I’ve noticed that poor job terminations tend to run with certain managers at times.
When people are under stress they like to limit all of their options, come up with very rigid thoughts, and make quick decisions. These rigid thoughts are why there is discrimination still today.
With any applicant you have to consider all of the facts, not just that someone was terminated previously, in deciding whether they would be a good fit in a position.
I’m not afraid to hire formerly terminated employees. I really don’t care about their prior relationships, only how they presented themselves in the interview with me and their experience in comparison to the job I am filling.
I’ve noticed that lower level employees have more fears in hiring formerly terminated employees and higher level executives are more aware and less discriminatory.
Now, with that said, I’m not afraid to tell someone the reason I didn’t hire them the first time so they know that if they apply with me again they need to show me how they’ve worked on that issue or I’ll steer them to another job where they could get a start and more coaching. Hard a fast rules that one candidate isn’t good for any job at the company is simply too limiting and seems more of a personal problem that hinders the company in the long term.